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Wednesday, October 06, 2010

Sticking My Toe Into The Supreme Court's Business: The Language of Hatred and the First Amendment

Disclaimer:  I am not a legal expert.  I am a citizen with google-fu, political science education, and an abiding interest in the First Amendment who is kind of pissed off.

Last week, a group from the Westboro Baptist Church stopped off in Columbus on their way to Washington, where the Supreme Court will decide on the court case that Albert Snyder, father of slain Marine Lance Corporl Matthew Snyder, brought against the group as the result of their protest at his son's 2006 funeral.  They went to a corner on the Ohio State campus, with their normal regalia, and protested as part of their 1-70 Godsmack Tour.

No offense to the rock band; I didn't name the event. They did. Voodoo is a great song, by the way.

I don't think it's a stretch to say that any decent, normal human being abhors a thought process that allows people to justify an intrusion upon a family's grief.  In my world, people don't think that soldiers killed in the line of duty are somehow God's punishment against America's 'immorality' about abortion and homosexuals.  Honestly, trying to decipher that train of thought would give Sigmund Freud insomnia.  I think it's also fair to say that the Westboro protesters are deliberately exploiting the media coverage given to soldier's funerals as a platform in which to spread their ideology.

If we could convict them for being insensitive douchebags, this would be an open and shut case.

Unfortunately, legal douchebagdom is not the issue here.  The issue is the First Amendment of the Constitution and its protection of free speech.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Westboro claims that the First Amendment protects them against civil claims.  Snyder was awarded $5 million dollars in damages, a decision that was then overturned by the Fourth Circuit Court.  So now, the US Supreme Court gets to tackle the case--and it may have ramifications upon us all.

But here's my first question: does the First Amendment actually protect individuals or groups claiming the right to free speech from private action? The First Amendment was conceived with the intention of protecting the rights of the people against the government. "Congress shall make no law" doesn't just imply that--it states it straight out. So it seems to me that a civil action between Mr. Snyder and the Westboro Baptist Church would not be not be a First Amendment case.  That would actually be a pretty good deterrent to the WBC protesters too--you have the right to say what you want at a soldier's funeral, and the soldier's family has the right to sue you for it. 

I've heard a lot of people bringing up the 'fire in a crowded theater' misquote of Oliver Wendell Holmes lately too.  Yes, you read that correctly--MISquote.  The actual quote from the majority decision in Schenck v. United States in 1919.  (The real quote from the opinion is: The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. You can shout "Fire!" in a crowded theater as long as there really is a fire.  But I digress.The First Amendment part of Schenck was subsequently overturned in Brandenburg v. Ohio which restricted prohibited speech to that which was likely to cause 'imminent lawless action.'

I'm curious to see how Brandenburg might apply to the Westboro case.  I'm reasonably positive that if my son were killed in action and WBC showed up to protest at his funeral, there would be a lot of imminent lawless action. (Trust me--you don't know my family.)  It seems to me to be a logical extension of Brandenburg, one that could apply to this case.

But, as hard as it is to say this, there are aspects of this case that disturb me as well.  The Reporters Committee for Freedom of the Press and multiple news organizations have filed an amicus brief citing their objections to the case.  First, the brief claims that the petitioner (Mr. Snyder) is asking to silence the defendent (WBC); second, that the First Amendment does not permit the offensiveness of speech to trump the freedom of expression; and third, that tort liability would undermine the basic principles of the First Amendment.  Go read the brief; I've linked to it and it's not only pertinent but interesting.

To the first objection, I'm going to have to disagree.  I don't think Mr. Snyder cares that WBC says what they do.  His objection is to the emotional trauma and harassment his family received from the WBC at his son's funeral.  There I have to agree. A sign that says "God loves dead soldiers" can't be construed as anything other than harassment, particularly when directed at a captive audience, which mourners at a funeral are.

The second objection is a bit trickier. When does offensive speech--okay, let's get real, HATE speech--cross over the line to harassment?  I think this is where Brandenburg can come into play.  Remember the scene in Die Hard 3, where they drop Bruce Willis off in Harlem in his tidy whities wearing a sign with the n-bomb on it?  Remember what happens?

I don't think that's unrealistic.  The harassment and emotional trauma caused by WBC protests will eventually jump right over the line into violence--probably sooner rather than later. There is a legitimate case to be made that signs like "God hates fags" and "Thank God for IEDs" will eventually get some people hurt and/or killed.  So do we protect their free speech and just let them get their asses kicked? Or, do we determine that their speech is deliberately incendiary and inciting violence and restrict them to marketing their agenda of hatred in otherm more appropriate forums?

But then, we hit the kicker--tort liability and the potential undermining of the First Amendment.  We've already seen several high profile libel cases in recent years.  Remember Carol Burnett v The National Enquirer, Inc?  This was a landmark case, especially for celebrities, who had been spectacularly unsuccessful in libel cases prior to this.  What made the case so important was the court's determination that the Enquirer had employed "actual malice" and that, because they didn't comply with the California regulations for newspapers, and as thus were liable for punitive damages despite the retraction they'd printed. After some pretty strenuous searching on my part, I haven't found any undermining of the First Amendment due to this tort liability.  (I have, however, noticed that the National Enquirer has been tippy-toeing in its claims about celebrities since.)

Here' s the gig--I am a writer.  I firmly believe in the powers of the First Amendment and the protection of free speech in this country.  The First Amendment is one of the cornerstones of our Constitution.

But, we've stretched the Consitution and its intent well beyond anything the drafters could have considered in the late eighteenth century.  It is my belief that the Westboro Baptist Church has intended all along to take advantage of the American preoccupation with preserving First Amendment rights, that they want to be martyred in the public eye, that the whole reason they've carried their 'protests' to these funerals is in the hope that someone would lose their temper and attack them. I think their conduct demonstrates this, as is evidenced by this from Time:

After the arguments concluded, Margie Phelps marched down the Supreme Court steps with her sister, Shirley Phelps-Roper; both huge smiles on their faces. Phelps-Roper did a little jig and said, "If I could shout 'Woo-hoo' right now, I would say 'woo-hoo.'" (There was nothing stopping her.) Margie, so controlled and logical in the courtroom, then joined her family at a press conference where they started singing to the tune of Ozzie Osbourne's "Crazy Train": "Cryin' bout your feelings/for your sins, no shame/You're going straight to hell on your crazy train."
The Time article, by the way, has a nice breakdown of today's arguments and events.  Go read it.

I don't often break my own rules and delve into politics on this blog; I think other forums are more important. But this case incites a lot of emotion on both sides of the issue.  Strangely, almost everyone agrees in the douchebagness of Fred Phelps and the WBC and empathizes with the Snyders.  But now, the SCOTUS has to decide whether it's okay to be a douchebag and manipulate the courts or whether the cherished and sacred reverence our country has for the Bill of Rights has limits under the law.  Regardless of what they decide, we should all follow this case.

It has implications for us all.